Jewish World Review Nov. 19, 2003 / 24 Mar-Cheshvan, 5764

Thomas Sowell

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Judges and judgment | Many years ago, someone did a study of the IQs of municipal transit drivers and their accident rates. Those with below-average IQs had higher rates of accidents, as you might expect. What was unexpected was the discovery that drivers with IQs above a certain level also had higher rates of accidents.

Apparently driving a bus or trolley was not enough to keep the minds of very bright people occupied. So their minds wandered and they had more than their share of accidents.

Something similar may have contributed to disasters in our legal system, especially in appellate courts, where the issue is not simply whether someone was innocent or guilty, or who caused what damage, but how all this fits into the framework of Constitutional law.

The Constitution of the United States is not some esoteric document, written to be understood only by people with high IQs and postgraduate education. It is written in rather plain language.

There is even a sort of instructions guide on what the Constitution means in The Federalist Papers — a collection of popular 18th century essays by those who helped write the Constitution, explaining why they did what they did.

Despite all this, appellate court decisions interpreting Constitutional law today are often a huge maze of tangled reasoning, obscure concepts and complex confusion. The motto over the entrance to the Supreme Court of the United States says, "Equal Justice Under Law" but sometimes you might wish that it said: "Brevity is the soul of wit."

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It is not that the cases are so complicated in themselves but that high-IQ judges have turned simple realities into complex metaphysics. A few years ago, the Supreme Court voted 5 to 4 that carrying a gun near a school was not interstate commerce. To most people, the decision was obvious. So why 5 to 4?

You might think the decision should have been nine to nothing and it should not have taken more than one page to explain. Yet the good justices tied themselves into knots with lengthy explanations of their votes for and against.

The reason this decision was so complex and caused such consternation among some legal scholars was that previous generations of Supreme Court justices had turned the Constitution's simple concept of interstate commerce into a complicated rationalization of Congress' ever expanding exercises of power that it was never given when the Constitution was written.

Although the 10th Amendment says pretty plainly that the federal government can do only what it is specifically authorized to do, while the people can do whatever they are not specifically forbidden to do, this was not good enough for those who had visions of a more active government in Washington.

The terribly clever people who were put on the courts kept "interpreting" Congress' power to regulate interstate commerce so broadly that anything they wanted to regulate was called "interstate commerce." Thus the interstate commerce clause was used to virtually repeal the 10th Amendment.

Judges got so clever back in the 1940s that even a man who grew food for himself in his own backyard was said to be engaged in interstate commerce — and therefore subject to the power of Congress.

After generations of this kind of runaway "interpretation" of the Constitution, it was a shock to some legal scholars when the Supreme Court decided — 5 to 4 — that Congress could not pass a federal law forbidding people from carrying guns near local schools.

Most states had such laws anyway, and all states had the authority to pass such laws if they wanted to, so this decision did not leave school children unprotected. It just put a stop to one of the thousands of extensions of federal power beyond what the Constitution authorized.

These over-extensions of federal power were not due simply to the ideological biases of judges, though that was undoubtedly a big factor. It also grew out of judges with more brainpower than was necessary to deal with 90 percent of the cases that came before them. High IQs and low self-discipline led to more wrecks in the law, just as among municipal transit drivers.

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JWR contributor Thomas Sowell, a fellow at the Hoover Institution, is author of several books, including his latest, "Controversial Essays." (Sales help fund JWR.)


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